Posted September 15th, 2014.
As It Appeared On
By: Bloomberg BNA
August 2014 Volume 32, Number 8
Introduction: A Growing National Problem
As the U.S. population ages, the already very large number of employees who have to juggle working with responsibilities to care for aging parents is increasing every year. Employers that regard this as a purely personal problem for the employee not only risk losing valuable workers to more broad-minded competitors or just to plain exhaustion; they may also be violating the federal Family and Medical Leave Act (FMLA) or one or more of a patchwork of more generous state, county and local statutes, labor law attorneys and consultants in the field of aging agree.
According to Nancy Thompson, senior media relations manager at AARP (formerly the American Association of Retired Persons), “the dollar value of the care families provide” as of 2009 stood at “$450 billion a year—more than the sales of Wal-Mart that year, more than the cost of Medicaid.’’ ‘‘Without family caregivers, the long-term-care system in America, such as it is, would collapse,” she added in an e-mail to Bloomberg BNA.
Disparate Gender Impact
“More than a quarter of the U.S. adult population—some 42 million people in any given month—are caring for adults, and more than eight out of 10 are caring for friends or relatives over the age of 50, according to a 2011 AARP Public Policy Institute study, ‘Valuing the Invaluable,’” Amy Goyer, a consultant for AARP with the title “family and caregiving expert,” writes in her 2013 e-book, Juggling Work and Caregiving.
“The workforce is aging. There are more women in the workplace and also more men as caregivers,” she added in an interview with Bloomberg BNA.
The Equal Employment Opportunity Commission has taken note of this growing problem in its Enforcement Guidance on “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” There is a disparate gender impact, the guidance says: “As with child care, women are primarily responsible for caring for society’s elderly, including care of parents, in-laws and spouses. Unlike child care, however, elder care responsibilities generally increase over time as the person cared for ages, and elder care can be much less predictable than child care because of health crises that typically arise.”
A Prevalent Issue in the Workplace
“I have absolutely no doubt that employee responsibilities for aging parents are going to become a prevalent issue in the workplace. The population is aging and the workforce is aging,” management-side attorney Khristan Heagle of Klein Zelman Rothermel Jacobs & Schess LLP in New York City told Bloomberg BNA in an interview. “The majority of the burden of caring for aging parents falls on family. It’s a huge issue for baby boomers who are staying in the workforce longer. Employee productivity and involvement will absolutely be impacted as a result of employees’ caregiving responsibilities.”
A 2013 AARP report found that ‘‘the seven to one ratio today’’ of people who are in the age range suitable to give care to elders, compared to the number of elders who need it, “declines to less than three to one in 2050 when the last of the boomers will have turned 80 and likely will begin needing care,” Thompson said. “The need for employers to support caregivers will only increase. Currently, the average family caregiver is a 49-50 year old woman who has her own family and holds down a paid job but also cares for her mother who still lives on her own about 20 minutes away. The caregiver puts in 20 hours a week caring for Mom, taking time off, going into work late or leaving early.”
As a consequence, “many family caregivers take a leave of absence, quit or retire, reducing their retirement income.”
There is no way employers can avoid being affected by such an enormous nationwide problem, and moreover “there is a clear financial incentive” for them to help employees burdened with elder caregiving responsibilities, Jody Gastfriend, vice president of senior care at Waltham, Mass.-based Care.com, said in an interview with Bloomberg BNA. She noted that the insurance carrier MetLife “estimated a few years ago that employers lose $17 billion to $30 billion in employee productivity a year” due to workers’ caregiving responsibilities, because “employees come in late, leave early and are distracted.”
The caregiving employees’ own health is affected by the stress involved, costing employers an extra $13.4 billion in health coverage for them, Gastfriend added: “A lot of research shows that people who are caregivers are depressed and don’t get preventive care. The whole mantra cliche of ‘take care of yourself’ has to be factored into this. They are more prone to chronic illness and substance abuse.”
The Sandwich Generation
All these factors add up to an imperative for employers to work with employees who have elder care responsibilities. “For employers, it makes sense to provide flexibility and support to employees who are caregivers,” Goyer said. “This maintains the workforce. Especially if they are in the typical caregiving age range of 45 to 60, they have been working for you for a while and you’ve invested in their training and expertise.”
Valuable, experienced employees like these may be caught in the classic trap of caring both for aging parents and dependent children.
“As elder care becomes more common, workers in the ‘sandwich generation,’ those between the ages of 30 and 60, are more likely to face work responsibilities alongside both child care and elder care responsibilities,” the EEOC enforcement guidance notes, a situation complicated by the fact that there is often less understanding of elder care responsibilities than of child care duties.
“They raise similar issues but different challenges,” Heagle said. “There’s a bit of a stigma about taking time off work to care for elderly parents as opposed to caring for children.”
Childless employees who have to care for aging parents may need support in a different way, Deborah Marcuse, a plaintiff-side attorney and a managing partner at Sanford Heisler LLP in New York City, told Bloomberg BNA in an interview.
“This is going to affect a lot of people who until now had tried to organize their lives so as not to have any caregiving responsibilities,” she said.
“In the workplace, having children is regarded as a choice, especially at the higher levels I represent,” she continued. “But all kinds of people have parents. Boomers may have had fewer children, so there is a group of people between 30 and 60 who never faced these issues before and are going to face them now, including people who saw themselves and were seen by others as totally dedicated to the workplace, without human responsibilities, and people with children now will have additional responsibilities. Employers will have to foreground the issue or face litigation.”
But it’s not just about avoiding lawsuits. Assisting valued, experienced and knowledgeable employees, Goyer said, makes sense “in order to retain them and help them work at their maximum capacity when they are working.”
The Legal Background
The federal Family and Medical Leave Act is the principal source of employer obligation to employees with caregiving responsibilities to elderly parents, but aspects of the Americans with Disabilities Act and Title VII of the 1964 Civil Rights Act may apply in certain circumstances, and it is essential to be aware of rapidly changing state, county and municipal statutes that may apply, labor law attorneys say.
In addition, the Equal Employment Opportunity Commission says in a “best practices” document for employers that the Equal Pay Act of 1963, the Pregnancy Discrimination Act, the Employee Retirement Income Security Act and Executive Order 13152 (prohibiting discrimination based on parental status in federal employment practices) may all come into play.
“The Family and Medical Leave Act is the primary source from a legal perspective in terms of what employers have to do,” Nancy M. Barnes, a management-side attorney and partner in Thompson Hine LLP’s Cleveland office, said in an interview with Bloomberg BNA. “The Family and Medical Leave Act identifies specific people, if the employee is caring for them, that [he or she] has to be granted leave for.”
Employers should make sure documentation, the notice process and recertification for FMLA leave “are done in a timely fashion,” Barnes said. Obtaining recertification when an employee needs additional FMLA leave because, for example, an aging parent’s medical condition worsens, “can be very, very frustrating, as everyone who deals with FMLA knows.”
“Employers have to realize that sometimes they’re at the mercy of the doctor and the employee” with regard to the rationale they provide for FMLA leave, Barnes said. “But you can request more information if what’s provided is inadequate or ambiguous.”
The FMLA creates the possibility of different kinds of legal claims, Sanford Heisler’s Marcuse said. For example, “if I come back from leave and you have taken my job away or are discriminating against me, there can be a discrimination or retaliation claim. If you interfere with my taking FMLA leave, there’s an interference claim.”
There is even some case law that says an employee who has worked less than one year for his or her current employer and so is not yet eligible for FMLA leave may have a discrimination or retaliation case “if you give pre-eligibility notice that you intend to take leave post-eligibility and are discriminated against or terminated,” Marcuse said.
The Wave of the Future
Newer state and local laws may be more generous to employees than the FMLA, Barnes said: “It’s a hot-button issue; they are trying to provide more leave than what’s in the Family and Medical Leave Act.”
For example, while the FMLA applies to companies with 50 or more employees, state and local laws may cover employers with as few as 15 or 20 employees and may extend coverage to an employee’s helping a parent who may not necessarily have a serious illness, Barnes said. Marcuse noted that a District of Columbia statute provides employees with family leave of up to 16 weeks over two years, running concurrently with federal FMLA leave.
Another example, cited by Klein Zelman’s Heagle, is New York City’s new Earned Sick Time Act, which provides up to five paid sick days that can be used by an employee caring for a sick parent. The city council is also considering a bill that would prohibit discrimination against an employee’s “actual or perceived” status as a caregiver.
“It’s very ADA-esque, requiring an interactive accommodation procedure,” Heagle said. “I think it will pass, and it’s the wave of the future. It’s really important for employers to be aware of existing and future legislation.”
Title VII may have a bearing in cases involving men caring for elderly parents, “because women are more expected to care for aging parents,” Heagle said. As for ADA, a provision that “often goes overlooked” bars discrimination against an employee for “associating with” a disabled person.
Marcuse elaborated on the latter point: If an employee has “a parent with a serious health condition, there is a potential intersection with the ADA, where if you are discriminated against because of your association with a spouse, parent or child, that can give rise to a discrimination claim. That gets you into the realm of stereotypes—for example, that women will be caregivers of children or the elderly. Also, you shouldn’t assume that men will not be the caregivers. You can have oppositional stereotypes applied to different genders by the same employer.” Another crucial point for employers to remember about legal compliance, Marcuse said, is that a “looks-good-on-paper” policy is never sufficient in and of itself.
“I keep seeing employers who grant much more generous leave than the law requires . . . but then a person decides to [take advantage of] that and is subject to a deeply hostile work environment because the culture of the company is hostile to it.” For example, an employee who takes FMLA leave to care for an elderly parent and then returns to the job might be ‘‘subjected to unusual scrutiny’’ unlike other employees if he or she asks for vacation time or arrives a little late to work.
Such practices are tempting a successful lawsuit, she said: “If you’re essentially setting people up to be discriminated against in this crazy way, you won’t be looked on kindly by a judge and jury.”
Best Employer Practicer on Elder Care
Narrow legal obligations don’t define the limits of what the smart employer does for valuable, experienced employees in their thirties, forties, fifties or sixties who need consideration when caring for elderly parents. The Equal Employment Opportunity Commission offers a range of “best practices” for employers, which labor law attorneys and advocates for the elderly and their caregivers supplemented in interviews with Bloomberg BNA.
First, the EEOC advises, “be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities.”
Care.com’s Gastfriend stressed this point in an interview with Bloomberg BNA: “Make it a part of a set of expectations for managers around addressing sensitive
Employer policies on caregiving employees should include the following elements, the EEOC says:
- a definition of relevant terms, featuring “an inclusive definition of ‘family’ that extends beyond children and spouses and covers any individual for whom the applicant or employee has primary caretaking responsibilities”;
- a description of “common stereotypes or biases about caregivers that may result in unlawful conduct,” many of which relate to the outmoded notion of women as primary if not sole caregivers;
- “examples of prohibited conduct related to workers’ caregiving responsibilities, such as asking female applicants and employees, but not male applicants and employees, about their child care responsibilities”; and
- a ban on retaliation against employees “who report discrimination or harassment based on caregiving responsibilities or who provide information related to such complaints,” together with information on how to file such complaints.
Employers should also be sure to “respond to complaints of caregiver discrimination efficiently and effectively” and “protect against retaliation,” the EEOC says.
“The EEOC recognizes that their suggestions go way above what the law requires,” Susan Fahey Desmond, a management-side attorney and shareholder at Jackson Lewis PC in New Orleans, said in an interview with Bloomberg BNA, citing suggestions the commission makes with regard to flextime, posting work schedules as early as possible so employees with caregiving responsibilities can make needed arrangements, and the provision of support and resources. “I understand where the EEOC is coming from on this,” Desmond said, “but employers can’t be employees’ babysitters and can’t deal with every issue an employee might have.”
But there is a great deal employers can do along these lines, Gastfriend said.
The Key Is Flexibility
“The number one issue, the first step, is for employers to provide real flexibility—a lot of employers haven’t figured out how to do that effectively,” she said. “A very direct impact on the workforce at a low cost is to give people flexibility. It comes primarily from an organizational culture that is caregiver-friendly.”
An employer can reassign a caregiving employee who needs to take FMLA leave on an intermittent basis to care for an aging parent, placing the employee in “a different position where intermittent leave isn’t such a problem, as long as the pay and benefits stay the same. Once the condition changes again, the employee does have the right to reinstatement,” Barnes of Thompson Hines said.
Another way the employer can handle such an employee’s need for sporadic leave is to use a “paid time off” model of leave, where vacation, sick and personal days are all placed into a single “bucket” that the employee can use as needed, Barnes said.
An employer may also wish to grant leave (usually unpaid) above and beyond FMLA requirements in extraordinary circumstances but must be careful to do so even-handedly. Giving “your 25-year superstar employee leave but not your lackluster employee . . . can create discrimination claims,” Barnes warned.
Last year saw a 50 percent increase in companies purchasing senior care benefits for the employees, Gastfriend said, which can involve help for employees with such basic tasks as calling doctors and home health care agencies for their aging parents. In addition, some employers are now providing backup eldercare for employees, which works just like backup child care, and employee assistance programs can help overwhelmed employees with the practical and emotional aspects of caring for aging parents. Another option for employers is to partner with area agencies on aging.
“Offering a benefit is just the beginning,” Gastfriend said. “The next step is building awareness and engagement around that benefit. Otherwise people may not use it” or may not even be aware of it.
“One of the key things is just to listen to employees” about their caregiving issues, AARP’s Goyer said. “Embrace caregiving as the new normal.”
Each employee’s situation is unique, as is each employer’s. Following are two examples of employers that successfully addressed individual employees’ caregiving needs, and one example of an employer that didn’t.
AARP’s Amy Goyer knows from firsthand experience that a sympathetic employer’s approach to an employee grappling with elder care issues can be the deciding factor in whether the employee keeps his or her job and continues contributing productively to the organization.
Washington-based AARP appointed Goyer to her current position as a family and caregiving expert to accommodate her own caregiving responsibilities after “my sister made it clear she needed more help locally with my parents,” Goyer told Bloomberg BNA. “I had been managing the finances from a distance and telecommuting from Phoenix about two weeks a month, but that wasn’t enough.”
“Because I knew I needed to base most of my time in Phoenix, they hired me as a consultant, so I work for AARP on a contract basis,” Goyer continued. “They are incredibly supportive of my caregiving and I’m fortunate that my work for AARP and a few other clients (who are all also very supportive) has worked out well for me. I have the flexibility to do my work where and when I can get it done, and most of my work can be done from anywhere. AARP flies me to D.C. about every four to six weeks for meetings, taping videos and radio interviews etc., and I kept my home in Alexandria [Virginia] and got a housemate there to help make ends meet. But that way I am able to fly in, sleep in my own bed in my home of 20 years and hit the ground running the next morning!”
At first Goyer worked from home in Phoenix, and her parents lived in a nearby senior community, but when they moved in with her, she rented an office in a separate building. Her mother has since passed away, and she has paid caregivers for her father, who has Alzheimer’s disease, when she is at the office.
“The key thing for me is flexibility,” she added. “I decided that being an independent contractor gives me the flexibility I need, and I’m able to meet my clients’ needs and my parents’ needs better this way. For some people, this is a great solution. For others, it’s so helpful if their full-time employers provide flexible work options. When I was a full-time employee at AARP, I had a compressed work schedule, so I worked longer days and had one day off per week. This allowed me to deal with most of my long-distance caregiving duties on Fridays. I also used most of my vacation and personal time off to travel to be with my parents.”
Care.com’s Jody Gastfriend provided another example of an employer going out of its way to accommodate an employee with family care issues and reaping loyalty as its reward.
The computer company Texas Instruments had an employee whose son had a terminal illness, Gastfriend said. TI paid the employee’s salary for a year while he cared for his son, after which the employee returned to the company and has worked for them for many years since.
While this wasn’t an elder care issue, the principle is the same, Gastfriend noted: “What goes around comes around.” If you, the employer, take care of your caregiving employees, “you will get it back tenfold.”
Chicago Park District
By contrast with these flexible approaches, when the Chicago Park District fired a woman who had been an employee for a quarter of a century when she took FMLA leave to be with her terminally ill mother, it found itself on the losing end of a federal lawsuit.
Beverly Ballard began working for CPD in 1983, eventually becoming a swim instructor, Bloomberg BNA’s Human Resources Report reported in a Feb. 3, 2014, article (32 HRR 104, 2/3/14).
In 2006, Ballard’s mother was diagnosed with end-stage congestive heart failure, prompting Ballard to take physician-certified intermittent FMLA leave as her mother’s primary caregiver to cook meals, administer insulin and bathe and dress her mother.
Ballard learned in a 2007 meeting with a hospice social worker that one of her mother’s end-of-life goals was to take a family trip to Las Vegas. The social worker was able to obtain funding for this trip through a nonprofit organization specializing in providing such opportunities for terminally ill adults. CPD denied Ballard’s request for FMLA leave in connection with the late January 2008 trip, but according to Ballard only after she had left for the trip.
While in Las Vegas, Ballard performed her usual primary caregiver duties and even drove her mother to a hospital when a fire prevented them from getting to the hotel room where her medication was stored. Some months later, CPD fired Ballard for unauthorized absences related to her Las Vegas trip.
Ballard sued, a federal district court allowed the case to proceed, and Ballard won on CPD’s appeal to the U.S. Court of Appeals for the Seventh Circuit, which held Jan. 28, 2014, that she may proceed with her FMLA claims because the care she provided to her mother during the trip was covered by the statute (Ballard v. Chi. Park Dist., 2014 BL 23062, 7th Cir., No. 13-1445, 1/28/14).
The Seventh Circuit decided that the plain language of the FMLA and corresponding Labor Department regulations do not require ongoing medical treatment to be part of the care provided in order to obtain FMLA coverage—unlike the First and Ninth circuits, which have concluded in other cases that ongoing medical treatment of a family member’s serious health condition is crucial in determining FMLA leave entitlement and coverage.
The Seventh Circuit found that FMLA Section 2612(a)(1)(C) entitles an employee to leave when the person needs to “care for” a family member with a “serious health condition.” The plain statutory language specifically refers to “care” rather than “treatment,” the court said, adding that CPD failed to explain “why participation in ongoing treatment is required when the employee provides away-from-home care, but not when she provides at-home care.”
Discussing the case with Bloomberg BNA, Marcuse said, “on the one hand, there is a technical reason why the court came to this conclusion, but it’s common sense compassion too. Really? You’re going to deny this employee’s request to take a trip with her dying mother?”
“Judges are human too,” she added, noting that conservative former Chief Justice William H. Rehnquist had joined a 6-3 U.S. Supreme Court majority in May 2003 in ruling that the family leave provision of the FMLA covers state government employees, a decision that many observers thought was influenced by Rehnquist’s own need to take leave to care for his grandchildren (Nevada Dep’t of Human Resources v. Hibbs, U.S., No. 01-1368, 5/27/03), yet another reason for employers to respond with a measure of sympathy when employees need leave to care for aging parents.
Conclusion: Enhancing the Work Environment
For legal, ethical and sound business reasons, it’s essential for employers to do what they can to meet the needs of employees facing the burdens of caring for aging parents.
“I agree with the EEOC that you have happier employees and they are more productive at work if they can take care of their other responsibilities,” Fahey Desmond of Jackson Lewis said.
“I would encourage employers not to look for technical ways to evade” their duty to provide FMLA leave, “but instead to recognize that the law is moving toward accommodating employees for basic human needs,” Desmond added. Going beyond that, “it’s such an opportunity for employers to accommodate those needs employees will have while enhancing the work environment,” Heagle of Klein Zelman said. “Employees can care for aging family members while still performing well at work.”